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Mr. R. H. Smith

Vice-President and General Manager
Norfolk and Western Railway Company
Roanoke, Virginia

Dear Sir:

We have your letter of January 3, 1940 declining deadhead claim of Norfolk Division Engineer A. M. Swann and Fireman C. M. Thompson account of work train to which they were assigned being cut off at Lynchburg, October 26, 1939.

We request that a date be arranged for the purpose of discussing this matter with you in conference.

Yours truly,

Roanoke, Virginia.

Gentlemen:

"Roanoke, Virginia
March 5, 1940

Signed-D. I. Minichan,

General Chairman, B. L. E.

"SUBJECT: Claim of Engineer A. M. Swann and Fireman C. M. Thompson for deadhead time Lynchburg to Roanoke, October 26, 1939.

Oral hearing is desired.

Signed-H. H. Burnett,

Mr. D. I. Minichan, General_Chairman,
Brotherhood of Locomotive Engineers,
210 Boxley Building,
Roanoke, Virginia.

General Chairman, B. L. F. & E.”

Consumers Building,

220 South State Street, Chicago, Illinois.

Mr. H. H. Burnett, General Chairman,
Brotherhood of Locomotive Firemen and Enginemen,

916 Colonial National Bank Building,

Roanoke, Virginia, April 29, 1940.
File E-715.

Conference requested in your letter March 5th for the purpose of discussing above entitled claim was held on April 11th.

This discussion did not result in a settlement of the case and as advised during conference, claim is again declined.

Yours truly,

/S/ R. H. Smith,

Vice President and
General Manager."

Roanoke, Virginia,
November 15, 1940.

Mr. T. S. McFarland, Secretary,

First Division, National Railroad Adjustment Board,

Dear Sir:

I have your letter of September 20, in which you state that Mr. D. I. Minichan, General Chairman, representing the Brotherhood of Locomotive Engineers, and Mr. H. H. Burnett, General Chairman, representing the Brotherhood of Locomotive Firemen and Enginemen, on our railroad, have served

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notice of their intention to file ex parte submissions in 3 cases, as listed in their letter, and that it is indicated a copy was sent to me.

On September 18, we received a copy of letter addressed to you by General Chairmen Minichan and Burnett, bearing date of September 17, in which there are listed 3 cases and we assume that this is the letter to which you refer. This letter lists the first case, as follows:

"Claim of Engineer A. M. Swann and Fireman C. M. Thompson for continuous time from the time they reported for work train service at Crewe on the morning of October 25th until relieved at Roanoke, which was the end of their deadhead trip.”

INITIAL ANSWER OF CARRIER: With the reservation that the carrier shall have the right to make further answer and defense after receipt of ex parte submission filed in this case by the Engineers' and Firemen's Organizations and in advance of or at the time of the hearing, the carrier now states its understanding of this claim and its position in the case.

CARRIER'S STATEMENT OF FACTS: The West End District, a part of the Norfolk Division, extends eastward from Roanoke, Virginia, to Crewe, Virginia, for a distance of 124.92 miles (time table mileage). Extra list of road engineers and firemen are maintained at Roanoke, the home terminal. Island Yard, located at Lynchburg, Virginia, is an intermediate point on the West End District (via Old Line between Forest and Phoebe), 55.04 miles east of Roanoke and 69.88 miles west of Crewe.

On August 22, 1939, an extra work train, engine 1133, was run out of Roanoke to operate on the West End District. Engineer A. M. Swann, first out on the extra list, and an extra fireman, were called for service on this work train. On August 28, 1939, the work train was advertised for an engine crew as follows:

"A Work Train has been put on to work between Roanoke and Crewe and same is numbered No. 1 for reference only. Accordingly, vacancies exist for an Engineman and Fireman.

"The senior applicants making written application within five days will be assigned thereto.

"This advertisement expires Midnight, September 2, 1939."

Engineer A. M. Swann and Fireman C. M. Thompson, the senior applicants, were assigned to the work train. Engineer Swann remained on the work train from August 22 until it was finally cut off. Fireman Thompson was regularly assigned to passenger trains 23 and 24 operating between Roanoke and Crewe and after bidding in the position of fireman on the work train he went to that run out on the road at his own expense, and the extra fireman whom he displaced on the work train was deadheaded back to Roanoke at the Company's expense.

Engine 448 was used on the work train out of Island Yard in place of engine 1133 October 23 and continued to be used thereafter until the run was cut off.

Work train Extra 448 laid up at Crewe at close of work on October 24, 1939. Engineer Swann and Fireman Thompson reported for duty for the work train at Crewe at 5:30 A. M. on October 25th. On the night of the 25th the work train was run into Island Yard where Engineer Swann and Fireman Thompson were relieved at 7:55 P. M. and 7:40 P. M. respectively. At the time Swann and Thompson registered off duty they were notified that the work train was then being cut off.

Engineer Swann deadheaded to Roanoke on passenger train No. 15, leaving the Union Station, Lynchburg, at 3:15 A. M. and arriving at Roanoke at 4:45 A. M., morning of October 26th. After arriving at Roanoke, Engineer Swann exercised his seniority rights and marked up on the engineers' extra list at that point.

Fireman Thompson deadheaded to Roanoke on passenger train No. 17, leaving Kemper Street Station, Lynchburg, at 9:40 P. M. (10 minutes late on the schedule), and arriving at Roanoke at 10:53 P. M. the same night, October 25th. Subsequently, Mr. Thompson exercised his seniority rights by displacing a junior fireman on interdivisional passenger trains Nos. 1 and 2, operating between Bluefield, W. Va., and Lynchburg.

For the service trip on Work Train Extra 448 from Crewe to Island Yard, October 25, 1939, Engineer Swann was paid 100 miles, 6 hours and 25 minutes overtime, and Fireman Thompson was paid 100 miles, 6 hours and 10 minutes overtime. They were allowed no compensation for deadhead trips from Lynchburg to Roanoke.

POSITION OF CARRIER:

PART I-RETURN OF REGULAR MEN IN WORK TRAIN SERVICE TO POINT WHERE WORK TRAIN Placed in sERVICE

In the usual course of business when work trains are put on at outlying Points for a period of more than six days, extra men called to man the work trains during the period of advertisement for regular men, deadhead to and from the outlying point at the expense of the Carrier from the extra list point where they are assigned. The senior applicants, who bid in the positions of regular engineer and fireman on those work trains, deadhead out to the work trains and deadhead back at their own expense. The instant case presents the unusual situation where a work train was put on at Roanoke (home terminal for the West End District of the Norfolk Division), and the extra crew performed service in moving the train from Roanoke out on the line. After the work train had been advertised and assigned, the extra fireman was relieved by the senior applicant (Mr. Thompson), and the extra fireman was deadheaded back to Roanoke at the expense of the Company. By coincidence, the extra engineer, who had moved the work train from Roanoke out on the line, was the senior applicant for the position of engineer, and he bid in, was assigned and remained on the job as the regular man. Mr. Swann's status as an extra man changed to that of a regular man at Lowry, an outlying point. After the need for the services of the work train had ended, it was cut off at Island Yard (Lynchburg) an outlying terminal point. The regular fireman and engineer claimed pay for moving from Island Yard to Roanoke the point where the work train was originally placed in service.

It is the contention of the Organizations that a duty rests upon the Carrier to return the claimants to the point from which the work train originated. The Organizations point to no rule in their schedules which requires the Carrier to return regular men on the work train to point of origin of the work train. The Carrier has carefully considered its Agreements with the Organizations and finds no provision in support of the contention. The records of the five Operating Divisions of the Railway have been searched for a period of the last ten years, and on all five Divisions, only five instances have been found where an identical situation with the one here in dispute existed. In none of those five cases did the Organizations contend by claiming time or otherwise that there was a duty upon the Railway to return the regular members of the crew to the point of origin of the work train. The Carrier holds that in the absence of rule, and because of the five cases (which are of value in suggesting precedent for determining the rights of the parties in the abscence of rule) that the contention of the Organizations is unfounded.

Aside from rules of the schedules, the suggestion comes from the Organizations that it is somehow unfair to abolish a work train at an outlying point and to leave the regular members of the crew to return to the original starting point of the work train without pay. The Carrier submits that the regular members of the crew were paid for their services on the work train up to the time the work train was abolished, and, thereafter, they were provided with free transportation to a destination of their choice. The Carrier has not con

tracted to return work tráins to points of origin; it has not contracted to pay wages to regular men back to the point of origin after the work train to which they were assigned has been cut off at an outlying point. A request for a rule requiring the Carrier to return regular men to the point of origin is a proper subject for negotiation. But until a rule has been negotiated and adopted to cover the situation, the assertion of a right is unwarranted.

PART II-SIGNIFICANCE OF NOTE III TO ARTICLES 12 (a)

In presenting the claim to the Management on December 15th, 1939, the General Chairman said:

"We are basing our contention upon Note III to Article 12 appearing in both the Engineers' and Firemen's Working Regulations." Reliance on Note III makes it necessary to explain to the Division the origin and intent of that note.

In 1910, the present rule (Articles 12 (a)) first appeared in the schedules and read in pertinent part as follows:

"When deadheading under orders and for the benefit of the Company, full pay of their respective classes will be allowed. When deadheading to relieve men at outlying points who obtain leave of absence of their own volition one-half pay will be allowed, except in case of sickness when full pay will be allowed * *99

*

The naked rule was a general statement of principle, and its application to practical situations as to what constituted deadheading for the benefit of the Company developed under agreed practices. The rule left unanswered, among others, the question: whether deadhead trips and service trips were to be paid separately or were to be combined for men in work train service (as distinguished from revenue freight service).

The answer was found in agreed practices which first appeared in print as memoranda signed agreements with the train service organizations in 1917. In February, 1917, the General Chairmen of the B. R. T. and O. R. C. (and these Organizations had the identical deadheading. rule (Articles 12 (a) which the engine service employes had) proposed that:

"When deadheading from terminal to terminal for work train service, miles or hours whichever are the greater will govern, with a minimum of 100 miles or 10 hours, and this ends his first day's work. When he commences another deadhead or service trip he then is entitled to another day's pay for the day, miles or hours whichever the greater to govern, with a minimum of 100 miles or 10 hours."

A copy of this letter is attached hereto as Exhibit "A."

Management was unwilling to agree to that interpretation, and after considerable negotiation, the following rule was agreed to on October 18, 1917: (on the part of the O. R. C. and B. R. T.)

"When deadheading for work or wreck train service, continuous time will be allowed from time of reporting for the deadhead trip until released at the close of the work day, or at the end of the deadhead trip, as the case may be. Miles or hours whichever the greater will govern."

On October 2, 1917, General Manager Needles inquired of the General Chairmen of the B. of L. E. and B. of L. F. & E. whether they would adopt a similar interpretation of their Deadheading Agreements. These gentlemen informed the General Manager on October 6th, 1917 that they were "not in a position to concur with the decision of the Conductors and Trainmen's Committee, on this question." However, effective August 6th and September 1st,

1920, the identical language was made part of the Engineers' and Firemen's Schedules, respectively, as Note III. The language is practically identical with that in effect today and on the day for which claim was made (October 25, 1939). The only difference is omission of the words "miles or hours, whichever the greater will govern" which became effective March 1, 1929 in the above schedules.

The claim in this case is for continuous time for the claimants from the time they reported for work on the morning of October 25th until the end of their deadhead trips at Roanoke. But the undisputed fact in this case is that these men were released (relieved) at Island Yard at the close of the work-day. If the Carrier had understood that it was incumbent upon it to return the claimants to Roanoke under pay, the men would not have been relieved at Island Yard. It would have been more economical1 (as Note III permitted) to have held the men on continuous time until the end of the deadhead trip. But since the men were released at Island Yard, the Carrier either owes them a minimum day for the deadhead trip from Lynchburg to Roanoke (as Note III would then require) or it owes them nothing. The question of combination or separate payments only arises when the deadhead trip is on orders and for the benefit of the Company. If the man is not deadheaded on orders and for the benefit of the Company, he simply is not paid, and there is no question about combining deadhead and service trips or about paying for them as separate units. Note III is only reached after a prior question has been decided, i. e. is the deadhead trip one for which men are entitled to compensation? Therefore, the Carrier considers the Organizations' reliance upon Note III as premature and one to be considered only after the threshold problem has been decided.

PART III-CONCLUSION

A-THE CASE OF FIREMAN THOMPSON

We ask the Division to consider first the case of Fireman Thompson. An extra fireman went out of Roanoke on the work train on pay. When he was displaced by Mr. Thompson, the extra man was deadheaded back to Roanoke at the Carrier's expense. That extra man was taken to the outlying point at the instance of and for the benefit of the Carrier, and to have held him there when the work was finished would have entitled him to claim that he was in service subject to the Held-Away-From-Home Terminal Rule until he was gotten back; consequently, the deadheading was for the Carrier's benefit for the Carrier was thereby relieved of that obligation.

But the case of Mr. Thompson is essentially different. He went to the outlying point because he chose work to which his seniority qualified him. The Company had a man on the job who was fully competent to do the work, and it was of no concern to the Carrier whether Mr. Thompson moved to the outlying point. Mr. Thompson went to the work train at the outlying point at his own expense and the Organization concedes that he is entitled to no compensation. The dispute arises over the return trip after the run was cut off. Mr. Thompson returned to Roanoke where he could exercise his seniority

1 Fireman Thompson has claimed $16.30 on a continuous time computation. For the service trip of October 25th plus a minimum day for deadheading he would be entitled to a total $19.70. Mr. Swann has claimed $30.23 on a continuous time computation. Mr. Swann had 1 hour and 45 minutes after being relieved at Island Yard to cross Lynchburg (about 11⁄2 miles) and catch No. 17 to deadhead to Roanoke. Instead, Mr. Swann remained in Lynchburg for an undisclosed purpose until 3:15 o'clock in the morning when he boarded No. 15 to return to Roanoke. Had Mr. Swann returned to Roanoke by the first available train (as he had ample time to do) he would be entitled to $21.31 on a continuous time computation. For the service trip of October 25th plus a minimum day for deadheading he would be entitled to a total of $26.12.

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